David A. Steinke v. Scott R. Poppe

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 25, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2028 Cir. Ct. No. 2017CV144

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

DAVID A. STEINKE,

PLAINTIFF-APPELLANT,

V.

SCOTT R. POPPE, SCOTT’S SEPTIC PUMPING, LLC AND STATE FARM
FIRE AND CASUALTY COMPANY,

DEFENDANTS-RESPONDENTS,

HUMANA INSURANCE COMPANY,

DEFENDANT.

APPEAL from an order of the circuit court for Sawyer County:
JOHN M. YACKEL, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.
No. 2019AP2028

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. David Steinke appeals a summary judgment
dismissing his lawsuit against Scott R. Poppe, Scott’s Septic Pumping, LLC, and
State Farm Fire and Casualty Company (collectively, “Poppe”). Steinke argues the
circuit court erred by concluding, as a matter of law, that after pumping Steinke’s
septic tank, Poppe did not have a duty to warn Steinke about the poor condition of
the septic tank’s cover or to take other action to prevent Steinke from falling through
the cover into the tank. We agree with the court that the undisputed facts establish
Poppe owed Steinke no such duty. We therefore affirm.1

BACKGROUND

¶2 Steinke purchased a house in Sawyer County in June 2013. The house
had a septic tank, which had been installed in 1982. The septic tank was steel, which
was typical for septic systems dating from that time. The tank had a cover (or lid)
that was flush with the ground and was covered with dirt, which held the cover in
place. Steel septic tanks are no longer common. Instead, modern septic tanks are
typically made of concrete and have covers that are padlocked and raised above
ground level.

1
In the alternative, Poppe argues the circuit court properly granted him summary judgment
because imposing a duty on him under the circumstances of this case would be contrary to public
policy. Because we conclude Poppe had no duty to warn Steinke about the condition of the septic
tank’s lid or to take other action to address that condition, we need not address Poppe’s public
policy argument. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d
716 (court of appeals need not address all issues raised by the parties if one is dispositive).

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¶3 In November 2013, Steinke hired Poppe to pump his home’s septic
tank. Poppe is a licensed septic tank pumper. He does not, however, repair or
inspect septic systems.

¶4 When Poppe arrived at Steinke’s property on November 4, 2013, he
first spoke with Steinke to obtain directions to the septic tank, as he had never
pumped it before. Poppe then went to the area where Steinke told him the septic
tank was located and found the tank’s lid by poking the ground with a metal rod.
Poppe removed the dirt that was covering the lid and noticed that the lid was rusted.
He then removed the lid, pumped the tank dry, put the lid back in place, and
re-covered it with dirt.

¶5 At his deposition, Poppe testified that after he finished pumping
Steinke’s septic tank in November 2013, he went back to Steinke’s house and told
Steinke that his septic tank needed a new lid because the current lid was rusted.
Steinke then paid Poppe, and Poppe left the premises. Poppe subsequently
submitted a report to Sawyer County indicating that he had pumped Steinke’s septic
tank and that he did not observe any ponding of wastewater or effluent on the surface
of Steinke’s property.

¶6 Steinke testified at his deposition that he had no memory of the
November 2013 pumping. He conceded, however, that he must have been present
that day based on the date of the check he used to pay Poppe. Steinke did not dispute
Poppe’s testimony that he told Steinke the septic tank’s lid needed to be replaced in
November 2013; he simply had no memory of that conversation.

¶7 Steinke again hired Poppe to pump his home’s septic tank in 2016.
On September 9, 2016, Poppe went to Steinke’s property and drove directly to the
septic tank, as he remembered where it was located. Poppe testified that when he

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removed the dirt covering the tank’s lid, he saw that the lid was still rusted and was
in “even worse” condition than before. After Poppe finished pumping the tank, he
put the lid back in place and re-covered it with dirt. He did not put a board over the
lid or rope off the area. He testified he did not see the lid as “a potential hazard if
somebody stepped on it” because he had stepped on the lid when trying to locate it,
and nothing happened.

¶8 Poppe testified he knocked on the door of Steinke’s house after he
finished pumping the septic tank in September 2016, but no one answered. Poppe
explained he had intended to tell Steinke again that he needed to replace the tank’s
lid because it was rusted, which could allow water and dirt to get into the tank.
Poppe testified it never occurred to him to warn Steinke that if he stepped on the lid
he could fall into the septic tank. He also asserted that it is not his responsibility to
tell a homeowner about the condition of their septic tank’s lid. He stated, however,
that he generally does so as a matter of courtesy.

¶9 Steinke conceded he was home when Poppe pumped his septic tank
in September 2016, but he testified he never heard Poppe knock on his door that
day. It is undisputed that Poppe left Steinke’s property in September 2016 without
speaking to Steinke. Poppe again filed a report with Sawyer County indicating that
he had pumped Steinke’s septic tank and that he did not observe any ponding on the
surface of Steinke’s property.

¶10 On the morning of October 4, 2016—just under one month after
Poppe pumped Steinke’s septic tank the second time—Steinke went for a walk
around his property. Steinke knew that he was walking in the general vicinity of
the septic tank’s lid, but he did not know the lid’s exact location. When Steinke
unknowingly stepped onto the lid, it gave way, and he fell into the septic tank.

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Steinke testified the fluid in the tank was deep enough to reach his chest. Steinke
was in the tank for approximately five and one-half hours before he was able to
climb out.

¶11 As a result of his fall into the septic tank, Steinke sustained abrasions
on his elbows and knees. At the time of his deposition in August 2018, Steinke
testified he no longer had any physical pain associated with the fall. He testified,
however, that he suffers from recurring nightmares related to the fall and attends
therapy to cope with the fall’s mental and emotional effects.

¶12 In December 2017, Steinke filed the instant lawsuit against Poppe,
alleging that Poppe had a duty “to repair or to notify … Steinke … of problems with
the septic system that made it a human health and safety hazard,” and that Poppe
was negligent by failing to do so. Steinke also alleged Poppe was negligent by
failing to “ensure the problems with the septic system which made it a human health
and safety hazard were open and obvious or were guarded with a barrier which
would prevent humans from falling into the system.” Poppe moved for summary
judgment, arguing Steinke’s negligence claims failed because Poppe did not owe
Steinke a duty to inspect the septic tank’s cover or to warn him of its rusted
condition.

¶13 The circuit court granted Poppe’s summary judgment motion. In its
oral ruling, the court explained that Poppe was hired to pump Steinke’s septic tank,
not inspect it. As such, the court reasoned that Poppe’s only duties were to “make
sure that everything is done in a sanitary manner. That there is not any dangerous
spills of the refuse that is in the septic tank. And to make sure that there is not any
standing water out on the drain field, or anything like that.” The court continued:

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There is no requirement from what the Court can see on
Mr. Poppe to inform or to inspect and to say, hey, this septic
covering is not doing well. It looks like it’s in rough shape.
And so I somehow I’m going to either flag this septic system
or to tell Mr. Steinke that he can no longer use this septic
tank until he gets it replaced. That was beyond the scope of
what Mr. Poppe was hired to do. He was hired to pump the
tank in a professional manner under the statutory code, or the
administrative code, and the local ordinances. And by all
accounts he did that.

¶14 The circuit court also noted it was undisputed that Poppe had informed
Steinke of the lid’s rusted condition when he pumped the tank in 2013. The court
concluded that doing so “[fell] outside of Mr. Poppe’s responsibility as far as what
he was hired to do” and was instead “just good business practice.” In any event, the
court reasoned that even though Poppe had informed Steinke of the lid’s condition
in 2013, Steinke’s fall into the septic tank in 2016 was not “foreseeable.”

¶15 The circuit court ultimately entered a written order granting Poppe’s
summary judgment motion and dismissing Steinke’s claims with prejudice. Steinke
now appeals.

DISCUSSION

¶16 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact

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and that the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2) (2017-18).2

¶17 In order to prevail on a negligence claim, a plaintiff must establish
four elements: (1) the existence of a duty of care on the part of the defendant; (2) a
breach of that duty of care; (3) a causal connection between the defendant’s breach
and the plaintiff’s injury; and (4) actual loss or damage resulting from the breach.
Hocking v. City of Dodgeville, 2009 WI 70, ¶10, 318 Wis. 2d 681, 768 N.W.2d 552.
Here, the circuit court concluded Poppe was entitled to summary judgment because
the undisputed facts established that he did not have a duty to inspect the lid of
Steinke’s septic tank or to warn Steinke of the lid’s rusted condition.

¶18 “Wisconsin has adopted the minority view from Palsgraf v. Long
Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), which established that
everyone owes a duty to the world at large.” Hocking, 318 Wis. 2d 681, ¶12. That
duty, however, is not unlimited and is instead restricted to what is reasonable under
the circumstances. Id. Thus,

[i]f a person, without intending to do harm, acts, or fails to
do an act, that a reasonable person would recognize as
creating an unreasonable risk of injury or damage to a person
or property, he or she is not exercising ordinary care under
the circumstances, and is therefore negligent.

Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶30, 291 Wis. 2d 283, 717
N.W.2d 17. “Ordinary care involves the concept of foreseeability, in that a
reasonable person exercising ordinary care would have foreseen injury as a
consequence of his [or her] act.” Id.

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶19 On appeal, Steinke contends there are genuine issues of material fact
as to whether Poppe had a duty to warn him of the dangerous condition of his septic
tank’s lid, to mark the dangerous condition in some way, or to repair the lid. First,
Steinke argues industry custom gave rise to those duties. Second, Steinke argues
the Sawyer County ordinance pertaining to septic systems imposed those duties on
Poppe. Third, Steinke argues those duties arose under the common law because it
was foreseeable that the lid’s condition could cause Steinke to fall into the septic
tank, and a reasonable person in Poppe’s position therefore would have warned
Steinke about the condition of the lid or taken other action to address the danger it
posed. We address these arguments in turn.

I. Industry custom

¶20 A jury may consider evidence of an industry custom when
determining whether a defendant acted with ordinary care. See WIS JI—CIVIL 1019.
Such evidence “is not conclusive as to what meets the required standard for ordinary
care or reasonable safety”; however, “[w]hat is generally done by persons engaged
in a similar activity has some bearing on what an ordinarily prudent person would
do under the same or like circumstances.” Id.

¶21 Steinke argues the testimony of his plumbing expert, Craig Every,
provided evidence of industry customs that Poppe failed to follow. Specifically,
Every testified that industry customs required Poppe to: (1) warn Steinke of the
dangerous condition of his septic tank’s lid; (2) flag the area; and (3) either repair
the lid or follow up with Steinke to ensure that the lid was repaired by someone else.
Every also testified that Poppe was required to leave Steinke’s septic system in a
safe and sanitary condition, which he failed to do when he re-covered the septic
tank’s rusted lid with soil. Steinke contends that Every’s testimony, at a minimum,

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created a genuine issue of material fact as to whether Poppe had a duty to warn
Steinke about the dangerous condition of his septic tank’s lid or to take other action
to address that danger.

¶22 We disagree. “A custom, the failure to observe which will constitute
negligence, must be certain, uniform, and invariable, and must also be notorious and
known to all persons of intelligence having to do with the subject to which it
relates.” Sprecher v. Roberts, 212 Wis. 69, 75, 248 N.W. 795 (1933) (citation
omitted). Every’s testimony did not provide evidence of any such certain, uniform,
invariable, and notorious custom within the septic pumping industry.

¶23 Every testified that he is a plumber; he is not a licensed septic tank
pumper. Thus, when Every is working at a property that needs to have its septic
tank pumped, he hires someone else to complete that task. Every further testified
that only about ten percent of his work as a plumber involves septic systems. Of
that ten percent, ninety percent involves the installation of new septic systems,
rather than the repair of existing systems. Moreover, Every testified that he has
never done any work on septic systems in Sawyer County. He is therefore
unfamiliar with the common practices of septic tank pumpers in Sawyer County.
As such, Every’s testimony does not demonstrate the existence of a custom or
practice among septic tank pumpers in Sawyer County, nor does it show that Poppe
violated any such custom or practice.

¶24 In addition, we observe that Every’s opinions regarding industry
custom were based in large part on his own interpretation of Sawyer County’s septic
system ordinance, which incorporates various administrative code provisions. The
interpretation of ordinances and administrative code provisions, however, are
questions of law. See Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 WI 51,

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¶18, 290 Wis. 2d 421, 714 N.W.2d 130 (administrative code); Town of Delton v.
Liston, 2007 WI App 120, ¶8, 301 Wis. 2d 720, 731 N.W.2d 308 (ordinances). A
court need not defer to an expert witness’s opinion on a question of law. See Town
of E. Troy v. Town & Country Waste Serv., Inc., 159 Wis. 2d 694, 707 n.7, 465
N.W.2d 510 (Ct. App. 1990); see also Wisconsin Patients Comp. Fund v.
Physicians Ins. Co. of Wis., 2000 WI App 248, ¶8 n.3, 239 Wis. 2d 360, 620
N.W.2d 457 (“[T]he only ‘expert’ on domestic law is the court.”). As explained in
the following section, we reject Steinke’s argument that the relevant ordinance and
administrative code provisions imposed a duty on Poppe to warn Steinke of the lid’s
condition or to take other action to address any danger it posed.

¶25 In his reply brief, Steinke argues Poppe “imposed a duty of notifying
customers upon himself by making it his common practice” to do so. This argument
fails because Steinke cites no legal authority in support of the proposition that
Poppe’s general practice of informing customers about the condition of their septic
tanks’ lids, as a matter of professional courtesy, gave rise to a required duty to warn.
We need not address arguments that are unsupported by citations to legal authority.
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). Instead, for
the reasons explained above, we conclude the undisputed facts do not demonstrate
the existence of an industry custom requiring Poppe to warn Steinke about the
condition of his septic tank’s lid or to take some other action to address that issue.

II. Sawyer County septic system ordinance

¶26 Steinke next argues that the Sawyer County ordinance pertaining to
septic systems, which incorporates certain provisions of the Wisconsin
Administrative Code, imposed a duty on Poppe to warn him of the dangerous
condition of his septic tank’s lid or to take other action to address that danger.

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Steinke is correct that a party’s duty of care is sometimes set by a statute, ordinance,
or administrative regulation. See Antwaun A. v. Heritage Mut. Ins. Co., 228
Wis. 2d 44, 66-67, 596 N.W.2d 456 (1999); see also WIS JI—CIVIL 1009. In this
case, however, Steinke has not cited any ordinance or administrative code provision
that actually imposed a duty on Poppe to take any action regarding the lid of
Steinke’s septic tank.

¶27 Sawyer County Ordinance #1-2011 regulates private sewage systems.
Sawyer County, Wis., Ordinance #1-2011 (Apr. 19, 2011). The stated purpose of
the ordinance is “to promote and protect public health and safety by assuring the
proper siting, design, installation, inspection and management of private on-site
wastewater treatment systems and non-plumbing sanitation systems.” Id., § 2.0.

¶28 Ordinance #1-2011 incorporates WIS. ADMIN. CODE ch. SPS 383
(Dec. 2019).3 WISCONSIN ADMIN. CODE § SPS 383.51(1) states that a private
on-site wastewater treatment system (POWTS) “shall be maintained at all times so
as not to create a human health hazard.” Based on that language, Steinke argues
Poppe had a duty to maintain Steinke’s septic tank in a manner that did not create a
human health hazard. Steinke further argues that Poppe breached that duty by
re-covering the tank’s rusted lid with soil and by failing to flag or rope off the area.

¶29 Steinke’s argument fails because the administrative code expressly
provides that the owner of a POWTS “shall be responsible for ensuring that the
operation and maintenance of the POWTS occurs in accordance with this chapter.”

3
All references to WIS. ADMIN. CODE ch. SPS 383 are to the December 2019 register.
Ordinance #1-2011 states that it incorporates WIS. ADMIN. CODE ch. Comm 83. See Sawyer
County, Wis., Ordinance #1-2011, § 4.0 (Apr. 19, 2011). That chapter of the administrative code
was renumbered as ch. SPS 383 in December 2011. See Wisconsin Administrative Register,
Dec. 2011, No. 672B, https://docs.legis.wisconsin.gov/code/register/2011/672b.

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WIS. ADMIN. CODE § SPS 383.52(1)(a)1. Steinke does not cite any administrative
code provision that places the responsibility for maintaining a POWTS on an
individual, like Poppe, who is merely hired to pump the system’s tank.

¶30 Steinke also implies that Poppe had a duty to inspect the septic tank’s
lid for damage because he is “qualified to perform septic inspections” under WIS.
ADMIN. CODE § SPS 383.54(4)(d)2.f. That section, however, merely provides that
a POWTS that was in existence prior to July 1, 2000, “shall be visually inspected at
least once every 3 years to determine whether wastewater or effluent from the
POWTS is ponding on the surface of the ground.” WIS. ADMIN. CODE § SPS
383.54(4)(d)1. Poppe complied with that requirement, noting on the reports he filed
with Sawyer County in both 2013 and 2016 that he had not observed any ponding
on Steinke’s property. Nothing in § SPS 383.54(4)(d) required Poppe to perform
any further inspection of Steinke’s septic tank or its lid.

¶31 Finally, Steinke asserts that Sawyer County has a “policy” pertaining
to “corroding steel septic tanks” that “recommends hazardous conditions be flagged,
ribboned, covered, barricaded, and/or roped off to protect the public from health and
safety hazards.” In support of that assertion, Steinke cites what appears to be a
pamphlet issued by Sawyer County’s Zoning and Conservation Office. That
pamphlet—entitled “Health and Safety Hazards of Steel Septic Tanks”—warns that
steel septic tanks are “prone to rust and corrosion,” which can weaken their
structural integrity and lead to “[c]ollapse and/or cave-in.” Under the heading
“Solutions,” the pamphlet states: “Avoid death, injury, damage to property and
other health and safety hazards by considering the following: … Flag, ribbon,
cover, barricade and/or rope-off potential hazardous areas.”

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¶32 Steinke’s argument that the above pamphlet imposed a duty on Poppe
fails for at least four reasons. First, while Steinke characterizes the pamphlet as a
Sawyer County “policy,” there is no evidence in the record indicating that
Sawyer County has ever formally adopted the information set forth in the pamphlet
as a policy. Second, Steinke cites no legal authority supporting the proposition that
a policy—as opposed to a statute, ordinance, or administrative regulation—can
impose a heightened duty of care. Third, the pamphlet merely recommends
“considering” flagging or marking hazardous areas. A mere recommendation is
plainly insufficient to impose a duty of care. Fourth, when read as a whole, the
pamphlet addresses what owners of steel septic tanks should do to address potential
hazards. Nothing in the pamphlet sets forth any steps that should be taken by an
individual who is merely hired to pump a steel septic tank. Accordingly, we reject
Steinke’s claim that the pamphlet imposed a duty on Poppe with respect to the lid
of Steinke’s septic tank.

III. Common law duty

¶33 Steinke also argues that regardless of any industry custom or any duty
imposed by an ordinance or the administrative code, Poppe had a common law duty
to “do something to prevent people and things from getting into [Steinke’s] septic
tank.” Steinke asserts that Poppe could have fulfilled that duty by “putting a board
over the hole, roping the area off, or notifying … Steinke,” but he instead “placed
the lid over the hole, buried it, and then left.” Steinke contends it is “incredible to
argue a reasonable person would bury a fragile septic tank lid and walk away from
it without comment or safety precautions knowing the risks posed by such a trap.”
He further argues Poppe had a “duty to act” because it was “foreseeable to him that
… Steinke would fall into the tank.”

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¶34 Steinke’s argument ignores the fact that Poppe was hired specifically
to pump Steinke’s septic tank—not to inspect or repair it. When a contractual
relationship exists between the parties, the nature of their contractual duties may
help us to determine “what is included within the duty of ordinary care.” Hoida,
291 Wis. 2d 283, ¶35; see also Cattau v. National Ins. Servs. of Wis., Inc.,
No. 2016AP493, unpublished slip op. ¶24 (WI App June 13, 2018), aff’d, 2019 WI
46, 386 Wis. 2d 515, 926 N.W.2d 756 (“When contracts are in play, the nature of
the contractual duties will help define what is foreseeable, and in turn, what kind of
response is reasonable and consistent with the standard of ordinary care.”).4

¶35 For instance, in Weather Shield Manufacturing, Inc. v. Compass
Group USA, Inc., No. 2010AP2992, unpublished slip op. ¶2 (WI App Feb. 2, 2012),
two vendors contracted to provide coffee and vending services for Weather Shield,
which included providing coffeemakers and connecting them to an existing water
line. The flexible water hose to which the coffeemakers were connected later failed,
causing substantial damage to Weather Shield’s property. Id., ¶3. Weather Shield
then brought a negligence claim against the vendors, asserting they “had a duty to
inspect the plumbing connection and replace the flexible water hose with copper
tubing or, in the alternative, to warn Weather Shield regarding the hose.” Id.

¶36 On appeal, we affirmed the circuit court’s determination that the
vendors owed no such duty to Weather Shield. Id., ¶¶1, 4. We reasoned that under
their respective contracts, both vendors had merely agreed to provide and install

4
In his reply brief, Steinke criticizes Poppe for citing Cattau v. National Insurance
Services of Wisconsin, Inc., No. 2016AP493, unpublished slip op. (WI App June 13, 2018), aff’d,
2019 WI 46, 386 Wis. 2d 515, 926 N.W.2d 756, and Weather Shield Manufacturing, Inc. v.
Compass Group USA, Inc., No. 2010AP2992, unpublished slip op. (WI App Feb. 2, 2012).
However, both Cattau and Weather Shield are authored opinions issued after July 1, 2009. As
such, Poppe could properly cite them for their persuasive value under WIS. STAT. RULE
809.23(3)(b).

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coffeemakers and other vending equipment. Id., ¶14. Neither vendor had agreed
“to undertake an obligation to inspect existing plumbing fixtures and connections,
including the flexible water hose, and to replace it with another type of hose or to
advise Weather Shield that the existing flexible water hose was not recommended.”
Id., ¶15.

¶37 Similarly, in this case, Poppe merely agreed to pump Steinke’s septic
tank. There is no evidence in the record to suggest that Poppe also agreed to inspect
the tank for damage, to inform Steinke of the tank’s condition, or to repair any
damage he found. Poppe went beyond his contractual obligation by informing
Steinke in 2013 that his septic tank’s lid needed to be replaced, and he attempted to
do the same in 2016. The fact that Poppe did so as a matter of professional courtesy,
however, does not mean that he had a required duty to warn Steinke about the lid’s
condition or to take other action, such as repairing the lid or roping off the area.

¶38 We also reject Steinke’s assertion that Poppe had a duty to act because
it was foreseeable that Steinke would fall into the septic tank. Poppe told Steinke
in November 2013 that the septic tank’s lid needed to be replaced. Steinke did not
do so, and the lid remained in place until 2016 without incident. In September 2016,
when Poppe returned to pump Steinke’s septic tank a second time, Poppe stepped
on the lid when attempting to locate it, but the lid did not collapse. On these facts,
we conclude as a matter of law that it was not foreseeable Steinke would fall through
the lid. As such, under the circumstances of this case, Poppe did not have a common
law duty to warn Steinke about the lid’s rusted condition or to take other action to
address that condition.

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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